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Monday, August 29, 2016

Circuit Judge Don Blankenship, who travels a path worn by Martin Luther King and other heroes, sullies any notion of civil rights in Birmingham, Alabama

Don Blankenship

Of all the outrageous court orders I've seen over the past 16 years, none can top the default judgment that awarded GOP operative Jessica Medeiros Garrison a $3.5-million in a defamation action against me. Jefferson County Circuit Judge Don Blankenship issued an order, denying my motion to vacate the default judgment, that is wrong on every substantive matter of fact or law.

The good news is that Blankenship's order is void, and I have an unlimited amount of time to have it overturned and declared a nullity. (More on that in an upcoming post.) The bad news is that Blankenship is a black Democrat, and in my three appearances before him, I thought he seemed like an intelligent, fair individual. Boy, was I wrong about that. That a black judge in Birmingham, Alabama -- site of historic civil-rights conflicts in the 1960s -- could trample black-letter law . . . well, one wonders the speed at which Martin Luther King's body must be spinning in his grave.

To put it bluntly, Don Blankenship is a disgrace to the many people -- of all colors -- who put their lives on the line to ensure that black Americans would enjoy fundamental human rights. To put it bluntly, Blankenship is a sellout. There is little doubt in my mind that someone in Birmingham's white legal power structure got to him and probably offered him some sort of favor in exchange for the noxious ruling examined below. How bad is Blankenship's order (which can be viewed at the end of this post)? Let's take a look:

Improper notice of Garrison's default judgment
It's undisputed that I never received lawful notice of Garrison's application for a default judgment or of a hearing on the matter. Blankenship blamed that on me, but he never cites any law to support his finding. That's because there isn't any; the burden was on Garrison to give notice -- and she didn't do it. From Blankenship's order:

The Defendant argues that this Court’s Order dated April 13, 2015, should be set aside on the procedural ground that notice of the default was not afforded the Defendant three days before its entry. The Defendant relies on Rule 55 of the Ala. R.Civ. P. in making this argument. On January 13, 2015, this Court granted the Plaintiff’s Motion for Default, however that default was not entered until damages were affixed to same. Damages were affixed on April 13, 2015, after a hearing had taken place to prove damages on March 19, 2015. The Court sent notices of the aforementioned hearings to the last known address of the Defendant. It is not the Court’s responsibility to determine the whereabouts of the Defendant; but, it is the responsibility of
the Defendant to inform the Court of his whereabouts. The notice of the first leave to prove damages hearing was given more than
thirty days in advance of that hearing. Moreover, notice was sent to the Defendant that the aforementioned hearing was continued until March 19, 2015. Therefore, the Defendant was given ample notice of the hearing to prove damages, but failed or refused to attend such hearing. Consequently, the Defendant’s procedural argument fails.

For a judge to write such utter horse manure is . . . well, it's pitiful. Blankenship is correct that it's not the court's duty to determine my whereabouts. But as we showed in an earlier post, under a case styled Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010), it is Garrison's duty to make sure I have at least three days notice of the default hearing. And she failed, meaning her default judgment is void, and Blankenship had no discretion to find otherwise.

On top of that, court documents show that my e-mail address was on every document I filed with the court. Garrison or her attorney, Bill Baxley, easily could have sent me an e-mail to determine my whereabouts. They never did that. I think they didn't do it because they didn't want me there; they wanted Garrison and Attorney General Luther Strange to blabber in court without pesky questions from the opposing side -- questions that might center on their professional, and personal, relationship.

To fully grasp Blankenship's corrupt motives, we invite you to examine the two highlighted areas above. He says default was granted on January 13, 2015, but he gives no indication that I was there (I wasn't), that notice was sent (it apparently wasn't), or that I received it (I didn't). He claims notice was sent for a hearing on damages set for March 19, 2015. But under Abernathy, that is beside the point. The plaintiff must receive three days' notice of the application for default and any hearing on the matter -- and Blankenship's own words show I did not.

Blankenship proceeds to address two other "substantive issues," both of which he gets wrong. We will address those issues in an upcoming post, but for now, all we need to know is that Garrison's default judgment is void, and Judge Blankenship's own words help prove it.

For good measure, I have an unlimited amount of time to get her bogus judgment reduced to ashes. And that is where it will wind up.

Blankenship is a black Democrat, and Garrison is a white Republican. But it appears they have at least one thing in common -- they went to law school for appearances sake, and no other reason. Clearly, they neither one have any respect for, or interest in, the law or justice.

That Don Blankenship would turn into a shill for Jessica Garrison, her lawyer Bill Baxley, and her prime political candidate/boyfriend Luther Strange provides a classic example of just how far our system has fallen.

Here is a theory I've developed since our unpleasant introduction to the legal world began about 2000: The practice of law, I think, presents a pretty miserable existence for many lawyers. Yes, a fair number of them become relatively wealthy and live in gated communities, with golf courses winding through them. Some become partners at large firms where they are expected to perform as "rainmakers" that keep their fellow elites living in style, while junior attorneys and paralegals do most of the real work. And some, like Blankenship, wind up in solo or small practices where they can do OK financially, but they have to put up with crooked judges and arrogant opposing counsel in order to do it -- and they have to look the other way when their own low-end clients get shafted and the solo/small-firm lawyer can do nothing about it. In other words, they see the casualties of one-sided legal war, but unlike the hero surgeons on M*A*S*H, they cannot piece them back together with meatball surgery. After awhile, I suspect, that scenario starts eating at one's soul.

So, what happens? If a mediocre black lawyer like Blankenship, or a mediocre white one like J. Michael Joiner, is lucky enough to become a judge, he hangs onto the position for dear life. They want to become "judge for life," and my impression is that they would slit their grandmother's throat to achieve that. Why? Because they are desperate not to go back to the drudgery and financial uncertainty of being a crappy lawyer.

If someone suggested that he could help make Don Blankenship a "judge for life" -- in exchange for screwing me over in the Garrison case -- I'm sure it would take "Dandy Don" about 2.3 seconds to make that deal.

In 2012, Blankenship was elected to the bench over Republican David Lawrence Faulkner, in a race that probably was decided strictly along racial lines. Blankenship is up for re-election in 2018, and I'm betting he runs unopposed. That's a nice, cheap way for elite white lawyers to buy "justice" for clients like Jessica Garrison. If Blankenship does have opposition in 2018, it will be a sign (I believe) that he received a handsome "gratuity" in exchange for the pathetic order you see below.

What's that saying about how awful it is to watch sausage being made? I'm guessing it's almost as horrifying to see "justice" being made in the US of A.

I had the same high hopes and was encouraged by his demeanor in 2-3 hearings. But when his rulings actually came out, he was no better than the white con artists in ShelbyCo, ChiltonCo, and elsewhere. Blankenship has no moral center, no spine, no interest in the actual law. He's a game-player, and that's the last thing we need.

Yes, that's the law regarding any order that is void -- not just in my case. If you are seeking a default judgment, you have got to give the other party notice of the application and the hearing. Garrison did not do that, so her judgment is void.

Blankenship claimed I didn't give the court our new address after foreclosure, but the law says that duty is up to the party seeking a default judgment, and that is Garrison. Besides, she had my e-mail address, which hasn't changed in years, so she had every opportunity to get in touch with me.

I sit and watch shows in Netflix like House of Cards and realize that all that really matters is what happens in the halls and offices of either congress or judisical buildings. It looks like fiction on TV, but I'm willing to bet my first born that it is exactly like what you see. And, I'm sure, it's been going on since the founding of the country. Can you imagine the deals made to get the constitution done? Scary thought...

I'm a lawyer. Your observation about how the profession works is 100 percent accurate.

As a practical matter it means that the best and brightest of the profession almost never become state court judges. Th state courts hear the vast majority of cases but good judges are rarely to be found. Add in the fact that most judges are elected and you get a lot of sausage making. It is very demoralizing when you practice in this system every day. And that is the case regardless of whether you practice at an elite firm or a solo shop.

Thanks for your insights, @10:30. You raise a very important point, that most state-court judges are not even close to being among the best and brightest in the law. That certainly dovetails with my experience.

My impression is that ethical lawyers face at least two huge challenges: (1) Corrupt judges who want them to sell clients down the road to favor the other party or simply because the judge wants a settlement (maybe a bad one for the client) and not a trial, which requires work on the judge's part; (2) The Alabama State Bar, which tends to favor large firms and their corporate clients. My impression is that the bar has been known to bring trumped up charges against lawyers who don't "play the game" properly. When's has a member or partner at a large firm ever been disciplined by the state bar. I don't think I've ever seen it happen.

Once you have appeared in court in any capacity - even to reject its jurisdiction - and affirmed you present address, the onus in on the person being sued to notify the court of a changed address. There's also evidence you actively avoided service.

You aren't in a good position there. The truth is, there is not ever likely to be a collection attempt. At least you've got that going for you.

Have you even read the post? The answer must be no because you have no clue what you are talking about. The post cites the applicable law which states: In the case of a default judgment motion, the moving party (Garrison) must give the nonmoving party (me) at least three days notice of the default application and the hearing. Garrison did neither.

What evidence is there that I avoided service? There's zero. Even Blankenship found that Baxley's first attempt at service was unlawful. I ultimately was served while in jail, which probably is illegal, but that's a subject for another post. I would love to know what "evidence" you can create out of thin air that I tried to avoid service.

I don't know if there will be a collection attempt or not, but the judgment is void, and Garrison has every reason to know it. Anyone who attempts to collect on a void judgment will experience serious consequences.

As for you, you sound a lot like Jessica Garrison herself. Your knowledge of the law is on the same level as hers.

A middle class Black gas station owner in Gadsden explained the situation to MLK, paraphrase: "I agree with the principle of what you're doing, but don't go scaring my White customers off because they pay my bills, Negro & you don't!"

The evidence of service evasion is on videotape, published by yourself.

Once you have had any notice of the lawsuit (you were served), the plaintiff may use your last known address in attempt to notify you. If you do not provide the court with your new address, that makes the notice sent to the old address valid.

Criteria:

You must know about he suit, have notice, address on file with the court.She can use that address when giving notice of any motion including default.If you conceal your new address (as in, fail to provide the new address) sending it to the old address constitutes a valid attempt at notification.

You need to understand this. You are not in a good position, because you did not update the court on your address after being served with the sue papers.

THAT IS YOUR RESPONSIBILITY, and the plaintiff fulfills his/her obligation by notifying you at your last known address on file with the court as your current address.

There is no way out of that, when you don't have clean hands. You don't have any excuse besides neglect or evasion to explain your failure to update your address on file with the court. The judgement is not voidable.

You are hung up on the idea that your ignorance of the motion is case closed. It's not because of the specific circumstances of your case. The court had a valid address to which the plaintiff is then supposed to send papers. The plaintiff doesn't have to update your address for service attempts to be valid. YOU HAVE TO TELL THE COURT IF YOU CHANGE RESIDENCE.

Service is complete when it's mailed to your last known address on file with the court.It's complete upon mailing to this address. The onus to make sure a plaintiff who has already managed to serve you at a known address, is on you.

Your judgment may be voidable, but not on the basis that you weren't properly notified of the motion. According to the rules in Alambama, you were.

This isn't a matter of general service, it's a matter of notification on a default judgment, and the law is real clear for those who do not have thick heads. From Abernathy v. Green Tree, the controlling law that I've cited here probably a half dozen times or more:

"Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days' written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree."

I don't know how much more clear the law could be. On top of that, my attorney at the time, said the record showed that notice of default application and hearing was not even sent. Do you have proof that it was sent, to show my attorney was wrong? If so, please send a copy of that evidence. I'd like to see it. (I've been in Missouri for a while, and do not have access to Alabama court files.)

It doesn't mean a thing because Abernathy is the law, and it clearly states the "onus" is on the party moving for a default judgment, and that is Garrison.

One final note: You say the judgment might be "voidable." Wrong. According to Abernathy and its progeny, the judgment is void, a nullity, right now. It was void the moment it was written.

Part of what I try to do here is educate people on important matters of law. But if your head is "thick as a brick," you might be beyond education. That seems to be the case here.

Just how stupid are you, @4:42? The video to which you refer, was of deputies from Shelby Co. supposedly trying to serve me in the Riley/Duke case. It had nothing to do with Garrison case, which was filed in Jefferson County. (The record shows, btw, that no summons had been issued in Shelby Co case so there was no lawful service attempt taking place. I wasn't avoiding service because they weren't attempting lawful service.)

As for your other points, I can only refer to the actual law on notice of a default application and hearing, as cited above in "Abernathy." If you can't grasp that, you aren't smart enough to be reading this blog. Perhaps you should try a porn site. That might be more your speed.

The law isn't black & white like arithmetic. Some of these anonymous lawyers need to get a grip. When the rules of civil procedure are in conflict with court decisions, guess what controls? Isaac Hayes said it best, "Hey everybody have you seen my balls? They big, an' salty an' brown! If ya eva need a quick pick me up, jus' stick my balls in yo' mouth! Oooh! Suck on my Chocloate, Salty Balls. Just put 'em in ya mouth an' suck 'em! They're good for you. They're high in fiber! Jus' suck on my bawlls...Instrumental Solo with children dancing (don't edit them out)...

Dude... with your reputation you are going to get skull fucked by any appellate court. And you are incorrect on the point of "unlimited time." You have 42 days from the date of the order or 42 days from an order on a post judgment motion, to appeal. Truth is you are probably judgment proof (based on your blog posts) so it really won't matter in the end.

Yeah. You really got this. Your defending yoursellf based upon your interpretation of the law has worked out real well. If the plaintiff pushes execution/collection of the judgment, you will end up in an appellate court, if the trial court decides the judgment is not void.

Now, you are changing the subject, which suggests to me you know your previous argument wasn't too stout. Before, we were discussing the actual law. Now, you've changed the subject to what judges do on the bench -- and those are two very different subjects.

Your comment, in a roundabout way, gets to the heart of why this blog exists -- too many judges do not follow the law they are sworn to uphold. In other words, they cheat the public; not just me, but you, your friends, people like Sherry Rollins, Linda Upton, Don Siegelman, and Paul Minor.

If you want to educate yourself -- and I'm sure you don't -- go back through almost 10 years of posts and find where one of my citations to law is incorrect. You refer to my "interpretation" of the law; I don't deal in interpretation of the law, I deal in citations to the law.

What I have cited for you is a correct statement of the law. But there is nothing in the world that will make a judge follow the law, and that's why Legal Schnauzer is here -- to show people that the system their tax dollars support is rotten to the core.

I'm sure that's too much for a smart-ass like yourself to comprehend, but I don't write for dullards like you. I hope this message will resonate with others, who are intelligent enough and engaged enough to actually care about the rule of law.

Shuler, you are delusional. You gave you notice to the court of your address and service ( notice of motions and proceedings including the motion for. default ) is effected when the motions go to that address. If you move but didn't notify the court, you still have "notice". It's your fault and the judgement isn't void because you tried to hide or neglected to update your address without excuse.

You had no excuse for failing to provide the court any new address. You had notice, because it went to the address you did give. Get a lawyer. He will give you the explanation I just did.

No one is going to attempt to collect, unless you have some kind of public windfall.

You are a piece of work, @11:49. If you refuse to read Abernathy, I can't help you. Why don't you tell us all what con game you are trying to pull. Better yet, contact me via e-mail or phone (both are listed here), and we'll discuss. Of course, I know you won't do that because you don't want to remove your mask and you don't know what you're talking about.

Cite law to support your claim or contact me and show you aren't a coward. Otherwise, I'm no longer interested in your little game, and future comments on this matter will be deleted. I'm tired of explaining the law to someone who isn't interested in learning.

Oh my godless, Communist, African-American loving, mistaken for a homosexual, but love Liberal women self. I completely understand why Snowden went to Russia. The Judicial Branch of Government in the United States is completely fucked

You must be a newbie to this blog, @11:49. One of the No. 1 themes here is that, if you have a question about the law, a lawyer is the last person you want to ask about it. They either don't know the law or they aren't likely to tell you the truth about it. Over and over, LS has encouraged readers to learn the law for themselves.

Memo to @6:14 -- I said I wasn't publishing any more of your wrong-headed comments unless you can make a citation to law to back it up -- you can't -- or you contact me to discuss directly [(205) 381-5673 or rshuler3156@gmail.com]. Love your line about finding a lawyer who "can explain the rules with authority" I can respect. Made me guffaw. Unfortunately, you wouldn't know a valid or void court order if it crawled out of your butt. I'm not in the business of letting clueless people use my comment section to further their own warped agenda. I've been way more patient with you than I should have. Either take the steps noted above, or you will be wasting your time sending additional comments. Not only is Garrison's judgment void now, it was void the moment it was written. That's the law, whether you like it or not.

BTW, why don't you send me a copy of the notice you claim was sent to my old home address. A lawyer who reviewed the file told me the docket shows notice was never sent, much less received. Let's see if you can prove the lawyer wrong. We're not talking about a very good lawyer, so you might be able to do it. but we'll see.

Anon @2:48 may not know how right he is. Law school & bar exams mostly test one on his ability to apply the common law to a fact pattern from 30 to 100 years ago. Many lawyers really do not know the law. What happens is they get to know a judge. If you get lucky & find a lawyer who knows about the laws made since his first year case book was published, this lawyer is usually a member of something called a "hunting club" or a "golf course" which is where most cases really get decided. The comments for this post seem to have taken on a life of their own & somehow, I got to the end of this one without using any "colorful metaphors" to accentuate my feeling. Well, ain't that a bitch?